P. P. Susheela v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: **“C. R.”** THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936 WA.No. 494 of 2014 ( ) IN WP(C).2128/2014 -----------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 2128/2014 of HIGH COURT OF KERALA DATED 12-02-2014 ------ APPELLANT/PETITIONER IN WP(C): --------------------------------------- P.P.SUSHEELA, AGED 61 YEARS W/O ADV U.T. RAJAN, RESIDING AT 'CHAITHRAM', ERNAHIPALAM KOZHIKODE - 673006 BY ADVS. SRI.K.JAYAKUMAR (SR.) SRI.P.G.JAYASHANKAR RESPONDENTS/RESPONDENTS IN WPC: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695001. 2. SELECTION COMMITTEE FOR THE SELECTION OF MEMBERS OF THE DISTRICT CONSUMER DISPURTE REDRESSAL FORUM, CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695001 REPRESENTED BY ITS _EX OFFICIO_ CHAIRMAN 3. SMT. BEENA JOSPEH, AGED 40 YEARS, NAKKUZHIKATTU HOUSE, 2/ 2580-A, CIVIL STATION P.O KOZHIKODE 673020 R1 &R2 BY SR. GOVERNMENT PLEADER SRI.C.S.MANILAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ------------------------------------------------ W. A. No.494 of 2014 -----------------------------------------------Dated this the 27[th] day of November, 2014 **“C. R.”** ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** This appeal is by the writ petitioner who failed in challenging the appointment of the third respondent as a Member of the Consumer Disputes Redressal Forum (CDRF), Kozhikode. 2. Heard the learned senior counsel for the appellant and the learned Senior Government Pleader. The learned senior counsel appearing for the appellant argued that having regard to the nature of the amendments to Section 10 of the Consumer Protection Act, 1986, hereinafter referred to as the “Act”, from time to time, it is apparently clear that the Legislature had done away with the insistence of 'social work' as a qualification, and therefore, merely because the third respondent is a social worker, she could W. A. No.494 of 2014 -2- not have been selected, having regard to the nature of Section 10(1)(b)(iii) of the Act as it stands now. The second argument is that the files do not disclose any consideration of the comparable abilities to assess the comparative suitability of the selected candidates and hence, judicial review is consciously averted by the Government, by not making available the relevant materials. The argument is that the files should consist the materials on the basis of which the committee had to conclude as regards the selection. The learned counsel for the third respondent supported the judgment of the learned single Judge. 3. While the appellant claimed that she is a senior and experienced lawyer and a former member of the CDRF, the challenge was focused on the plea that the third respondent, who has been selected and appointed, does not possess the requisite qualification in terms of the provisions contained in Section 10 of the Act. 4. During the course of consideration of this appeal, it was noted that the Government did not file any counter W. A. No.494 of 2014 -3- affidavit before the learned single Judge. Hence, the Government was directed to make available the files relating to the selection. We have perused the files which contain the minutes drawn up by the selection committee constituted in terms of Section 10(1A) of the Act. 5. The primary requirement for appointment as a member of a CDRF is that the candidate should be a graduate, meaning thereby one who possesses a Bachelor's degree from a recognised University. Section 10(1)(b)(iii), as it now stands, requires that the person to be appointed, has to be one of ability, integrity and standing, and having adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs and administration. Hence, the evaluation that has to be made by the selection committee has to be made taking into consideration the fairly wide spectrum of the field of choice, going by the statutory prescription contained in Section 10 (1)(b)(iii) of the Act. This is the law in the context. W. A. No.494 of 2014 -4- 6. The fact of the matter remains that the third respondent as well as the appellant were in the list prepared by the selection committee. Sub-section 1A of Section 10 of the Act provides that the appointment shall be made by the State Government on the recommendation of a selection committee consisting of the authorities enumerated thereunder. This provision was pointedly dilated upon by the Division Bench of this Court in **State of Kerala v. Reghu Varma [2009 (3) KLT 634]** wherein the Bench, reversing the decision of the learned single Judge reported as **Reghu Varma v. State of Kerala [2009 (2) KLT 241]** , held that the recommendation made under Section 10(1A) is not of any particular list of merit, but a list of candidates recommended and the Government would be within their authority to choose from out of that list. Adverting to the facts of that case, it can be seen that the learned single Judge had held that what was prepared by the selection committee was a priority list on the basis of merit and W. A. No.494 of 2014 -5- therefore, the Government could not upset the ranking of merit made by the selection committee. The Division Bench held that this is not the correct approach, having regard to the role of the selection committee which was only to recommend the candidates. We do not see any ground to differ from the ratio of the decision of the Division Bench noted above. Hence, once the appellant/writ petitioner and the third respondent are shown to be in the selection list prepared by the selection committee, there cannot be any further judicial review on the materials relating to the comparative evaluation on the basis of the materials, that could form basis of the comparative evaluation between the two selected candidates. The plea raised by the appealing writ petitioner in this regard, therefore, fails. 7. The amendments to the Act do not, in any manner, exclude a social activist from the field of choice. What was initially required before the amendments was to have one lady social worker. By the sequence of amendments, the members were taken as a homogeneous lot, to prescribe the W. A. No.494 of 2014 -6- qualification; and also ensuring that one among the appointed persons is a woman. In that view of the matter, when we examine the different subjects enumerated in Section 10(1)(b)(iii), we have to notice that what is required is experience in dealing with problems which relate to those fields. This is the law. 8. From the judicial seat, we have to dissuade ourselves from stating as to whether a person having a post graduate degree in Sociology and having worked for the physically handicapped persons and in institutions which support the physically challenged would, or not, have experience in dealing with problems of varied nature which are challenges to persons of that sector. That is not in the judicial review domain. Economics, law, commerce, accountancy, public affairs, administration, industry etc. are matters which would fall within the broad spectrum of understanding as to what such a person would have gained by experience in working in a sector, extending support to the physically challenged. Executive wisdom prevails in this regard. We do not see that W. A. No.494 of 2014 -7- such visualisation is capricious, unethical, perverse, or arbitrary in terms of the wide spectrum of rule of governance in terms of the Constitution of India. This way also, we see no ground to hold that the third respondent was unqualified to be appointed. 9. Dismissing the writ petition, it was also held that the selection committee is constituted in such a manner that within the yardstick provided in Section 10(1)(b)(iii), that authority ought to be taken to have considered all the relevant materials because the selection committee in terms of Section 10(1A) of the Act has the Law Secretary and the Secretary in charge of the Department dealing with Consumer Affairs in the State as members. We affirm that view. 10. Having regard to the Constitution of India and the situational situs of the statute under consideration; in the ultimate analysis; the focus has to be on consumerism. Consumerism is nothing but a composition of different ideas which will come through the process of experience in W. A. No.494 of 2014 -8- different fields as are enumerated in Section 10(1)(b)(iii). It is the reflection of the edifice of ideals referable to civil societies, human rights and societal commercial balance, as between the provider and consumer. 11. The aforesaid position notwithstanding, the President of the State Commission is the Chairman and if the President is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the Chief Justice would nominate a sitting Judge of the High Court to act as Chairman of the Selection Committee. It cannot but be said that the selection process is to be done by a committee which is a high repository of power. It also reflects the legislative wisdom of assuming that such a committee consisting of a former or sitting Judge of the High Court and two Government Secretaries would necessarily have the acumen to analyse the requisite, from out of, the qualifications possessed by the candidates under consideration, as to whether they are persons to be recommended for consideration for appointment as part of W. A. No.494 of 2014 -9- the District Consumer Forum, having regard to the qualifications prescribed in Section 10(1) of the Act. There is no way to assume that those in the committee had acted contrary to the public need, public interest, and, the relevant constitutional and statutory dictates. The plea to the contrary fails. In the result, this appeal is dismissed. Sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- P.A. TO JUDGE //TRUE COPY// W. A. No.494 of 2014 -10-